Minn. R. Civ. App. P. 105

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Below is Rule 105 of the Minnesota Rules of Civil Appellate Procedure. Rule 105 deals with Discretionary Review, and is indexed under TITLE II. APPEALS FROM JUDGMENTS AND ORDERS.

105.01 Petition for Permission to Appeal; Time

Upon the petition of a party, in the interests of justice the Court of Appeals may allow an appeal from an order not otherwise appealable pursuant to Rule 103.03 except an order made during trial, and the Supreme Court may allow an appeal from an order of the Tax Court or the Workers' Compensation Court of Appeals not otherwise appealable pursuant to Rule 116 or governing statute except an order made during trial. The petition shall be served on the adverse party and filed within 30 days of the filing of the order. The trial court should be notified that the petition has been filed and provided with a copy of the petition and any response. Four copies of the petition shall be filed with the clerk of the appellate courts, but the court may direct that additional copies be provided. A filing fee of $550 paid to the clerk of the appellate courts shall accompany the petition for permission to appeal.

(Amended effective March 1, 2001.)

Comment - 1983

A petition for discretionary review must be filed with the clerk of the appellate courts within 30 days after filing of the order.

Because a request for discretionary review of an interlocutory or other nonappealable order is usually prompted by some exigency and because it is not customary to give notice of making and filing of nonappealable orders, a petition for review must be served and filed with the clerk of the appellate courts within 30 days after the order was filed with the clerk of the trial court.

See Appendix for form of petition for discretionary review (Form 105).

105.02 Content of Petition; Response

The petition shall be entitled as in the trial court, shall not exceed ten typewritten pages, and shall contain:

(a) a statement of facts necessary to an understanding of the questions of law or fact determined by the order of the trial court;

(b) a statement of the issues; and

(c) a statement why an immediate appeal is necessary and desirable.

A copy of the order from which the appeal is sought and any findings of fact, conclusions of law, or memorandum of law relating to it shall be attached to the petition. Any adverse party may, within five days after service of the petition, serve and file with the clerk of the appellate courts four copies of a response to the petition, which shall not exceed ten pages. Any reply shall be served within two days after service of the response and shall not exceed five pages. All papers may be typewritten in the form prescribed in Rule 132.02. No additional memoranda may be filed without leave of the appellate court.

The petition and any response shall be submitted without oral argument unless otherwise ordered.

(Amended effective March 1, 2001.)

Advisory Committee Comment - 1998 Amendments

The rule has been amended to change the responsive time from seven to five days to be consistent with the time to file a response to a petition for an extraordinary writ and to a motion. See MINN. R. CIV. APP. P. 120.02, 127. The two-day period to file a reply is added to be consistent with the provision for a reply in the rule on motions. See MINN. R. CIV. APP. P. 127. Because intervening weekends and holidays are not counted when the time for response is less than seven days, the change will not shorten the time for response, and may actually lengthen it in some cases. See MINN. R. CIV. APP. P. 126.01.

Advisory Committee Comment - 2000 Amendments

Rule 105.01 is changed to authorize petitions to the Supreme Court seeking discretionary review of nonappealable orders of the Tax Court and the Workers' Compensation Court of Appeals. The Court has noted the advisability of such a provision. See Tarutis v. Commissioner of Revenue, 393 N.W.2d 667, 668-69 (Minn. 1986). The amendment to Rule 105.02 clarifies that the petition should not be accompanied by a separate memorandum of law, expands the page limit for the petition to ten pages and specifies page limits for the response and reply.

105.03 Grant of Permission - Procedure

If permission to appeal is granted, the clerk of the appellate courts shall notify the trial court administrator and the appellant shall file the bond as required by these rules, and then proceed as though the appeal had been noticed by filing an appeal. Two copies of a completed statement of the case shall be filed within five days of the order granting the petition. The time fixed by these rules for transmitting the record and for filing the briefs and appendix shall run from the date of the entry of the order granting permission to appeal.

(Amended effective for appeals taken on or after January 1, 1992.)

Comment - 1983

The filing of 2 copies of a completed statement of the case is required within 5 days from the date of the order granting the petition for discretionary review.